In June 2009, Donald Kushniruk was arrested after taking out a knife in a public park in Alberta. He chose to self-represent at trial, and although a lawyer was appointed to consult with him, neither him nor the lawyer ever applied for bail. He had been diagnosed with bipolar disorder, and possibly suffered from schizophrenia. Due to recurrent delays, Kushniruk spent over two and a half years in jail awaiting trial for an offence for which he would ultimately be sentenced to seven days. A few months after his release, Kushniruk was arrested again after an argument with his parole officer. Two weeks into his incarceration, he committed suicide. Although the problem of over-incarceration of individuals with mental illnesses has led to the implementation of mental health courts across Canada, our conceptions of individual capacity and autonomy suggest that there may be some theoretical and practical barriers to their success . In exploring this sentencing alternative, we will first look at the functioning of these courts across Canada and then zoom-in on Québec as a case study.

The Mental Health Court

Across Canada, mental health courts share similar overarching goals: increasing the well-being of those involved, decreasing recidivism, improving access to services, and enhancing community safety. However, there are variants of the mental health court across provinces: Old City Hall Court in Toronto is a fully independent court, working full-time in parallel to other courts. While in Montreal, the court is integrated into the criminal division of the Municipal court, a program termed PAJ-SM (Programme d’Accompagnement Justice-Santé Mentale).

In general, the mental health court team consists of crown attorneys, judges, defence lawyers, health care providers (i.e., general practitioners and psychiatrists), and justice system actors (i.e., police officers, parole officers, and criminologists). Assistant crown attorneys are most likely to be involved in the creation process of the courts (in Ontario, in 68% of cases), while judges and mental health workers often aide in the process (in Ontario, in 37% of cases).

Diversion Programs

A diversion program is an alternative to traditional criminal trial or guilty plea. A diversion plan, devised by health workers, may implement a variety of conditions based on available resources, including consulting a medical practitioner, complying with medication requirements, refraining from alcohol or any illicit drugs, and attending information or training sessions. Most of the time, these are soft conditions, meaning that contravening them does not necessarily lead to reprimand (although there is the possibility of being removed from the court program).

In Quebec, there are two types of diversion programs offered by PAJ-SM: “Suivi”, which is similar to the Ontario program, or “Liaison” which constitutes a softer approach, where the interventions from the court and health workers are minimal. In both programs, non-compliance with one of the conditions leads to the individual being tried more strictly by law, although the judge may consider mental illness in her decision. Most Quebec mental health courts, in addition, offer support services as part of the diversion program such as crisis and emergency response, safe beds, support for housing, and so forth – again, based on available resources.

Eligibility Criteria

Another difference in the functioning of the mental health courts across Canada is the different eligibility criteria for participating in the program. While almost all courts require the individual to agree to participate in the process (i.e., in Montreal and in most of Ontario), Old City Hall Court in Toronto does not require such willingness. Moreover, in Windsor, the court does not have any eligibility or entry requirements, but rather it relies on the judge to decide on eligibility, based on the general evidence obtained.

Issues of labelling, diagnosis, and stigma are prevalent in any mental health question. For mental health courts, these stem from differentiating a “normal” court from a “specialized” court. Certain stakeholders argue that judicializing mental illness in this way further stigmatizes individuals living with mental illness as they are isolated and segregated from the rest of the process. Furthermore, although the program is voluntary, some argue that there is no true choice between the possibility of going to jail and having a matter be processed through this alternative court. Consequently, individuals who do not think they suffer from any mental illness, or do not wish to be diagnosed, may nevertheless choose to take part in the diversion program. This begs the question: are we looking out for what we believe to be in the individual’s best interest, or their freedom and autonomy to make decisions for themselves?

The controversy over this law is clear: while the Charters protect the right to freedom, P-38 allows for involuntary confinement, irrespective of criminal behaviour. The legal framework in Québec can lead to some inconsistent results when dealing with individuals with mental health issues. Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set-free.

The Social Context

The vast majority of individuals living with mental illness do not encounter the criminal justice system in their lifetime. However, the over-incarceration of individuals with mental illnesses reminds us that some still do. For many stakeholders, this is not due to a question of criminality, but rather to lack of access to the services needed, be it treatment, social support, financial resources, housing, and/or others. Moreover, most mental illnesses can occur comorbidly with other mental health issues (e.g., drug or substance abuse, depression, eating disorders, etc.), which may strain individuals further, and lead to criminality. Indeed, a study by Jaimes and collogues supports that most crimes committed by individuals with a mental illness are minor crimes, usually related to homelessness, low-income status, and other social circumstances.

Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set free.

We arrive then at a circular issue: lack of resources compounded with mental health issues may lead to criminality, which is dealt with through mental health courts, which in turn lack sufficient resources to support individuals. Mental health courts come as a second thought, a reactive measure, while there should be preventive measures in place.

This two-part series on alternative sentencing is aimed at understanding the various intricacies of criminal justice and health law, and the need for creativity and innovation with regard to issues disproportionally affecting certain groups in society. This is in the hope that our deeper understanding of human development, behaviour, and mental health will help to shape our legal frameworks.

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.